11
PROCTOR | August 2016
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current practice in Queensland whereby
recommended changes are only put forward
at the relevant Minister’s discretion.
A suggestion that the fundamental legal
principles set out in the Legislative Standards
Act 1992 might usefully be enshrined as
fundamental provisions in a foundational
document such as the Constitution
of Queensland, in order to affirm the
Government’s commitment (particularly
in a unicameral system) to the rule of law.
Julia Connelly is a QLS policy solicitor.
Committee heeds our concern
on onus of proof reversal
A Queensland parliamentary committee
has agreed with serious concerns
raised by Queensland Law Society
over the Vegetation Management
(Reinstatement) and Other Legislation
Amendment Bill 2016.
Following the introduction of the Bill in March,
we highlighted three key issues in a written
submission on 27 April and before a public
hearing conducted by the parliamentary
Agriculture and Environment Committee in
Brisbane on 3 June. These were:
Reversing the onus of proof is a breach
of fundamental legislative principles and a
departure from well-established rule of law
principles. The presumption of innocence is a
foundation principle of our justice system and
the proposed removal of this presumption is
unjust. A more appropriate response to the
perceived issue of prosecuting offences is to
ensure that prosecutors are properly funded
and resourced so that prosecutors can
gather sufficient evidence that an offence
has been committed.
The proposal to remove the defence of
mistake of fact in certain prosecutions does
not pay sufficient regard to the rights and
liberties of individuals under the Legislative
Standards Act 1992. The Explanatory Notes
do not set out sufficient justification for the
removal of the defence. Given the significant
penalties and the standard of proof imposed,
it is inappropriate to exclude the defence
for the convenience of prosecution.
The proposed retrospective application
of certain amendments to 17 March 2016
(when the draft legislation was introduced
to Parliament) have the potential to create
significant complexity for determining clearing
activities that are lawfully undertaken during
the interim period. Retrospectivity is a breach
of fundamental legislative principles and will
create uncertainty for landholders affected
by this legislation.
Our concerns were widely reported in print
and television media around the time of the
public hearing.
Since then we have welcomed the
committee’s report (on 30 June), in which
it unanimously recommended removing the
draft provision reversing the onus of proof:
“In light of the significant concerns raised ...
about the proposal ... to reverse the onus
of proof in relation to vegetation clearing
offences and the potentially significant
fundamental legislative principles issues
raised by the amendment, the committee
recommends ....[the proposal to] reverse
the onus of proof in relation to vegetation
clearing offences, be omitted.’’
The Society is mentioned throughout the
report in relation to our submissions on this
issue, the removal of the defence of mistake
of fact, and the retrospective aspects of the
Bill. The committee did not reach agreement
on remaining issues which will be considered
by Parliament later this year.
The committee’s report and a copy of all
submissions on the Bill are available from
the committee’s section of the parliamentary
website at parliament.qld.gov.au.
Wendy Devine is a QLS policy solicitor.
Advocacy
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